6. Office of Legal Counsel Opinion

If the country of the alien's citizenship or nationality declines to accept the alien, the Attorney General is instructed to attempt to remove the alien to one of six listed countries, including the country in which the alien was born and the country from which the alien was admitted to the United States. See INA § 241(b)(2)(E)(i)-(vi). Each of those countries, of course, would have to be separately negotiated with by the United States, and would also have to be given an appropriate amount of time--presuma bly 30 days--to decide whether to accept or reject the alien. Finally, if none of the six listed countries is willing to accept the alien, or if the Attorney General decides that it would be “inadvisable” to send the alien to any of the listed countries that is willing to accept him, the Attorney General is instructed to remove the alien to any country of the Attorney General's choice whose government is willing to accept the alien. See INA § 241(b)(2)(E)(vii).

Id. at 21 n.11. Importantly, the OLC opinion did not address the specific issue of whether acceptance by the government of a country was a legal prerequisite to removal under section 241(b)(2) of the Act or merely a pragmatic consideration. In fact, the section of the opinion quoted by the commenters is contained in a footnote to the opinion, where the text of the opinion is focusing on the length of time negotiating with different governments may take. As was stated in the Notice of Proposed Rulemaking, “t he general practice of the Executive Branch is not to attempt to remove an individual under the Act to a country whose government refuses to accept him.” 69 FR at 42904. Accordingly, the OLC opinion was simply relying on what was the standard practice of the Executive Branch as it related to length of time it might take to negotiate with foreign governments; it was not espousing a legal position that acceptance by a government is required under section 241(b)(2) of the Act. In this rule, it is the Attorney General who is construing the legal interpretation of the Act on this particular issue (an issue which was not the focus of the OLC opinion). The Attorney General is vested with the authority to issue interpretations of the Act, and his determinations are controlling, as provided in section 103(a)(1) of the Act, 8 U.S.C. 1103(a)(1).

7. Agency Operating Instructions

Some commenters cite section 243.1(c)(1) of the Immigration and Naturalization Service Operations Instructions for the following statement: “deportation cannot be effected until travel documentation has been obtained.” Based on this statement in the operating instructions, commenters contend that acceptance is generally required under section 241(b)(2) of the Act. However, agency operating instructions provide guidance to its employees and do not have the force and effect of law. See, e.g., Haitian Refugee Center v. Baker, 953 F.2d 1498, 1512 (11th Cir.), cert. denied, 502 U.S. 1122 (1992); Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990) (quoting Dong Sik Kwon v. INS, 646 F.2d 909, 918-19 (5th Cir. 1989)); see also United States v. Caceres, 440 U.S. 741 (1979) (noting that Internal Revenue Service Manual did not create enforceable rights warranting suppression of evidence obtained in violation of Manual). The operations instructions contain guidance for line officers; they are not indicative of agenc y authority generally. Accordingly, commenters' reliance on this 10-word phrase within the operating instructions dealing with travel documentation does not support the proposition that acceptance is a legal requirement under section 241(b)(2) of the Act. Indeed, as the Secretary of Homeland Security has already recognized, “the general practice of the Executive Branch is not to attempt to remove an individual under the Act to a country whose government refuses to accept him.” 69 FR 42904. Since it is not t he general practice of the Executive Branch to do so, and since acceptance can be demonstrated by providing travel documentation, this operating instruction is not inconsistent with the fact that acceptance is not a legal requirement to removal, but a practical one. Additionally, this 10-word phrase within the operating instruction does not create an enforceable right that does not otherwise exist in the statute itself. Therefore, the agency operating instructions do not support the commenters' position tha t acceptance is generally required.

8. Removal of Aliens to Countries Without Functioning Foreign Governments

Certain commenters suggested that human rights concerns preclude the United States from returning aliens to countries without functioning governments, as could occur under the proposed rules. This proposition by commenters would eviscerate the specific provisions within the Act and the regulations that provide for protection under certain circumstances and would create a separate protection provision flowing solely from customary international law.

The Act and regulations provide various mechanisms whereby aliens can seek protection from removal. Specifically, an alien present in the United States may apply for asylum if he or she establishes a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, see sections 101(a)(42) and 208 of the Act, 8 U.S.C. 1101(a)(42), 1158. Similarly, an alien may apply for withholding of deportation to a particular country under section 24 1(b)(3)(A) of the Act, 8 U.S.C. 1231(b)(3)(A), if he or she establishes that it is more likely than not that he or she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. Additionally, the regulations implementing the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture), provide protection, in the form of withholding of removal or deferral of removal, if an alien is more likely than not to be tortured if removed to the proposed country of removal. 8 CFR 208.16(c)(3), 208.17(a); see Convention Against Torture, S. Treaty Doc. No. 100-20 (1988), 23 I.L.M. 1027 (1984), approved by the United States Senate Oct. 28, 1990, 136 Cong. Rec. 36625 (1990). Except for deferral of removal under the Convention Against Torture under 8 CFR 208.17(a), however, these provisions also exclude aliens from seeking protection under certain circumstances. For example, section 208(b)(2) of the Act lists exceptions for aliens seeking asylum; section 241(b)(3)(b) of the Act lists exceptions for aliens seeking withholding of removal; and 8 CFR 208.16(d)(2) lists exceptions for aliens seeking withholding of removal under the Convention Against Torture.

Additionally, section 244 of the Act, 8 U.S.C. 1254a, provides temporary protected status for nationals of a foreign state if the Secretary of Homeland Security “finds that there is an ongoing armed conflict within the state” and returning aliens to the state “would pose a serious threat to their personal safety,” or “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the [Secretary of Homel and Security] finds that permitting the aliens to remain temporarily in the United State is contrary to the national interest of the United States.” However, section 244(c)(2) of the Act also excludes certain aliens from temporary protected status.

These provisions demonstrate that Congress provided for protection from removal in specific circumstances and, even when protection is available, excluded certain aliens from obtaining such protection. The commenters' general assertions that international law prohibits removal of aliens to a country without a functioning government, notwithstanding an alien's inability to qualify for protection under any or the provisions of the Act or regulations mentioned above, are misplaced because it would create oblig ations for the United States that are not cognizable in domestic courts. “Several times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and applying international human rights law, as when its ratification of the International Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self-executing. These reasons argue for great caution in adapting the law of nations to private rights.” Sosa v. Alvarez-Machain, 542 U.S.--124 S.Ct. 2739, 2763-64 (No. 03-339, June 28, 2004) (citing 138 Cong. Rec. 8071 (1992)). For example, article 3 of the Convention Against Torture, is often relied upon for the requirement that the United States may not remove an individual to a country where it is more likely than not that the individual will be tortured. However, the Convention Against Torture is not self-executing, as the United States Senate made clear in its reservations, understandings, declarations, and provisos contained in it s resolution of ratification of the Convention Against Torture. The Senate required separate implementing legislation and regulations. Regulations implementing the Convention were adopted pursuant to a congressional directive in section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, 112 Stat. 2681-761, 2681-822. See 64 FR 8478, 8488 (February 19, 1999). Thus, the protection afforded by the Convention Against Torture, cognizable in domestic courts, is contained in the impl ementing legislation and regulations. General reference to international law does not create more “law” in this area than was otherwise specifically domestically authorized and implemented.

Accordingly, statutory and regulatory provisions provide protection to aliens as appropriate; customary international law cannot be said to provide additional rights cognizable in domestic courts than are already provided under domestic law. Therefore, the Secretary and the Attorney General will not modify the proposed regulations in response to this comment.

9. Foreign Policy Considerations

Some commenters suggest that the proposed rule raises serious foreign policy concerns because nothing in the rule prohibits DHS from removing aliens to a country over the country's objection. In so doing, these commenters reference the norm of customary international law of sovereign equality. The commenters fail to recognize, however, that the rule does not need to address, nor is it the place to address, foreign policy considerations such as sovereign equality. As stated in the Notice of Proposed Rulemaki ng, the “general practice of the Executive Branch is not to attempt to remove an individual under the Act to a country whose government refuses to accept him.” 69 FR at 42904. The commenters, while acknowledging this statement in the Notice of Proposed Rulemaking, indicate that nothing in the Notice specifically prohibits the Executive Branch from doing so. Commenters are correct that nothing in the rule prohibits the Executive Branch from doing so because nothing in the Act prohibits the Executive Branch f rom doing so, and foreign policy considerations, which are entrusted to the Executive Branch, do not compel reading such a prohibition into the Act.

The Executive Branch is vested with the discretion to act in the foreign policy interests of the United States. As the Supreme Court has stressed repeatedly, the right of the Executive Branch to remove aliens “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). The “power to expel or exclude aliens” is “a fundamental sovereign attribute exercised by the Government's political departments.” Fiallo v. Bell, 430 U.S. 787, 792 (1977). As stated in the Notice of Proposed Rulemaking, “[t]hese considerations apply with special force to immigration issues arising under the Act involving foreign countries that are either hostile, dysfunctional, or lack the capacity to exercise their sovereign authority. In particular, in exercising authority to remove aliens under the Act, the Executive Branch has the responsibility to assess,” and is in the best position to assess, the foreig n policy implications of its actions. 69 FR at 42906. Therefore, sovereign equality is an issue for the Executive Branch to determine; it does not create a private right of action nor does it suggest, much less compel, that the authority of the Executive Branch to effect removals to a particular country over that country's objection is in any way affected as a matter of domestic law cognizable in domestic courts.

10. Identifying Country of Removal at Removal Hearing for Protection Requests

Some commenters state that an alien has a due process right to know the country to which he or she will be removed during the removal hearing. These commenters note that choosing the country of removal has due process implications to the extent that the proposed country or countries of removal may affect an alien's decision to apply for asylum, withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), and protection under the Convention Against Torture. Accordingly, these commenters re quest that the proposed rule be modified to “protect the rights of asylum applicants and those fearing persecution.”

The Secretary and Attorney General find it unnecessary to amend the proposed rule in response to this comment. In this context, it is important to differentiate between asylum, withholding of removal under section 241(b)(3) of the Act, and protection under the Convention Against Torture in discussing what protection is available to aliens. Under section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), an alien may apply for asylum if he or she has been persecuted, or has a well-founded fear of persecution, from his or her country of nationality or the country where he or she last habitually resided. An alien in the United States may apply for asylum regardless of whether removal proceedings are pending and regardless of the country or countries designated for removal. By contrast, an alien may apply for withholding of removal under section 241(b)(3) of the Act or protection under the Convention Against Torture under 8 CFR 208.16(c)(2), 208.17(a) to prevent removal only to a specific country or countries. Accordin gly, the proposed country of removal does not in any way affect an alien's ability to apply for asylum. Therefore, in discussing protection claims in the next few paragraphs, the Secretary of Homeland Security and the Attorney General will be referring to withholding of removal under 241(b)(3) of the Act and protection under the Convention Against Torture, as these are specific to the proposed country of removal, but will not be referring to asylum since it is not dependent upon the proposed country of remo val.

In terms of arriving aliens who are covered under section 241(b)(1) of the Act, each potential country of removal can be identified during the removal hearing, except for section 241(b)(1)(C)(iv) of the Act, where the alien may be removed to “[a] country with a government that will accept the alien into the country's territory.” Similarly, for aliens covered under section 241(b)(2) of the Act, each potential country of removal can be identified during the removal hearing, except for section 241(b)(2)(E)(vii ) of the Act, where the alien may be removed to “another country whose government will accept the alien into that country.” Thus, an alien will have the opportunity to apply for protection as appropriate from any of the countries that are identified as potential countries of removal under section 241(b)(1) or (b)(2) of the Act. In this respect, the Secretary and Attorney General are aware of the cases cited by the commenters wherein the potential countries of removal were not all specifically named and wher e the aliens were not afforded the opportunity to apply for protection as appropriate from those countries. See, Kossov v. INS, 132 F.3d 405 (7th Cir. 1998); Kuhai v. INS, 199 F.3d 909 (7th Cir. 1999); but see Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir. 1999) (wherein the agency agreed that alien was entitled to remand where potential country of removal was not designated until the end of the removal hearing). It is important to note, however, that there are cases where protection claims from more than one country are identified and considered at the removal hearing. See, e.g., Ambartsoumian v. Ashcroft, 388 F.3d 85 (3rd Cir. 2004). As discussed in the Notice of Proposed Rulemaking, all parties in the removal proceeding share responsibility for ensuring that the record identifies the countries to which the alien may be removed where removal is premised upon some previous connection to that country. 69 FR at 42908. Indeed, 8 CFR 1240.10(f), as amended by this rule, requires that immigration judges identif y for the record the countries to which an alien may be removed. Accordingly, except for removals pursuant to sections 241(b)(1)(C)(iv) or 241(b)(2)(E)(vii) of the Act, an alien will know at the time of the removal hearing all of the potential countries of removal and may apply for protection from the country or countries as appropriate. Any protection claims will then be addressed as part of the removal hearing, which itself provides the process that is due.

The Secretary does acknowledge that identification of a removal country under sections 241(b)(1)(C)(iv) or 241(b)(2)(E)(vii) of the Act, where removal will be to a country with no connection to the alien other than a determination by the Secretary of Homeland Security that the country is willing to accept the alien, will likely not occur until after the removal proceeding is concluded. Importantly, the vast majority of removals are to countries with which the alien has some connection and for which the alie n would have had ample opportunity to apply for protection as necessary. To the extent that removal will occur under section 241(b)(1)(C)(iv) or 241(b)(2)(E)(vii) of the Act, the Executive Branch will identify the particular country and then assess whether the government of the proposed country of removal is willing to accept the alien. In the exercise of its functions as it relates to removal under either of these sections, the Executive Branch, through the Secretary of Homeland Security and the Secretary of State, is aware of the relevant law as it relates to the protection of aliens being removed to any particular country. Cf. 22 CFR. 95.3 (implementing the Convention Against Torture in extradition cases and providing that allegations relating to torture will be reviewed by appropriate “policy and legal offices”). In appropriate circumstances, DHS may agree to join motions to reopen that would otherwise be barred by time and number limitations. See 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv).

11. Modification of Certain Regulations

Certain commenters suggested that existing regulations are not consistent with the approach taken in these rules. The commenters correctly note that with these rules, DHS is amending its regulations to reflect its interpretation of the Act. As a result of these amendments, DHS's regulations will become uniform and consistent with its interpretation of the Act.

Commenters also suggested that the language of 8 CFR 241.4(g)(2) and (3) are in conflict with the interpretation of the Act, as set forth in these regulations. As currently written, 8 CFR 241.4(g)(2) directs the local United States Immigration and Customs Enforcement Detention and Removal Office of the Department of Homeland Security responsible for an alien's case to attempt to secure travel documents for an alien, and to elevate the case to headquarters in the event that the local office is unable to secu re such documents. Section 241.4(g)(3) discusses how the status of travel documents should be considered as part of a custody determination. The fact that regulations, in the section dealing with travel documents, state that the agency should attempt to obtain travel documents, and that availability of travel documents is a relevant factor in the custody determination, is not inconsistent with these rules. Because the Executive Branch does not generally “attempt to remove an individual under the Act to a co untry whose government refuses to accept him,” 69 FR at 42904, there is nothing inconsistent about regulations where the district director is instructed to “undertake appropriate steps to secure travel documents.” Nothing in the two regulations cited by the commenters prohibit the Secretary of Homeland Security from effectuating a removal absent those travel documents; they simply incorporate the standing practice that removals will not generally occur if the government of the proposed country of removal re fuses to accept the alien. To the extent that issuance of a travel document is but one of many methods employed by the Secretary of Homeland Security to determine that the country does not refuse to accept the alien, the two regulations are nothing more than a realization of the practical aspects of removal. Accordingly, in this context, commenters again mistake the difference between the practical aspects of removal and the legal authority by which to effectuate those removals.

12. Miscellaneous Comments

The Departments were also asked by one commenter what the phrase “zone of interest” meant as used in the preamble to the proposed regulations. See 69 FR at 42906. This phrase is discussed in detail in footnote 2 of the preamble to the proposed regulation, and the Secretary and Attorney General decline to address further the meaning of the phrase at this time.

An additional commenter suggested that these regulations were part of the DHS effort to streamline expedited removal. These rules only address the countries to which an alien may be removed after the alien has been ordered removed; they do not affect the expedited removal procedures. The Secretary does note, however, that the authority to initiated expedited removal proceedings has recently been expanded. See Notice Designating Aliens for Expedited Removal, 69 FR 48877 (August 11, 2004) (authorizing expedit ed removal proceedings for aliens present in the United States without having been admitted or paroled, who are encountered within 100 miles of the border, and who cannot establish that they have been physically present in the United States continuously for the preceding fourteen days); Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR 68924 (November 13, 2002) (authorizing expedited removal proceedings for certain aliens who arrive in the United States by sea, who are not admitted or paroled, and who have not been continuously physically present in the United States for the preceding two years).

Some commenters generally alleged that some of the factual background provided in the Notice of Proposed Rulemaking was irrelevant. The Secretary of Homeland Security and the Attorney General disagree that the factual background was irrelevant, as it was provided to assist the public in understanding the purpose and scope of this rule.

One commenter argued that the statutory limitations on motions to reopen in section 240(c)(6)(C)(ii) of the Act reflect Congress's intent to give legal effect to an immigration judge's designation of a country for removal. Accordingly, the commenter argues that the restrictions on motions to reopen do not permit removal of an alien to a third county not named by the immigration judge. The commenter further argues that at a minimum, Justice should modify 8 CFR 1003.2 and 1003.23 to account for changes in the country of intended removal. Justice disagrees with this commenter and declines to accept the proposed changes. Contrary to the commenter's claim, current immigration law provides the United States with the authority to remove aliens to countries other than those designated by an immigration judge. For aliens who have not made a formal entry into the United States, the alien may be removed to any country that satisfies the criteria listed in section 241(b)(1) of the Act, and for all other aliens, the alien may be removed to any country that satisfies the criteria listed in sections 241(b)(2)(C), (D), and (E) of the Act, without approval from an immigration judge. See also 8 CFR 1240.10(g) (recodified in 8 CFR 1240.12(d)). Additionally, for those aliens who wish to raise new issues regarding the designated country of removal, current law already provides a mechanism for reopening their cases. When appropriate, DHS may agree to waive the time and numerical limits on an alien's right to file a motion to reopen, 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv), or the immigration judge or the Board of Immigration Appeals may reopen the case sua sponte, 8 CFR 1003.2(a), 1003.23(b)(1).

One commenter addressed a portion of the Justice regulation relating to 8 CFR 1241.8, suggesting that the word “may” should be changed to “shall” in order to more accurately reflect the existing requirement in the cross-referenced section at 8 CFR 241.8. However, the Department of Justice has decided to defer making any revisions to section 1241.8, pending further consideration, and accordingly this rule makes no change in the existing language of 8 CFR 1241.8 at this time.

Similarly, DHS and Justice have decided to defer making revisions to 8 CFR 236.1 and 1236.1, pending further consideration, and accordingly this rule makes no change in the existing language of 8 CFR 236.1 and 1236.1 at this time.

Finally, Justice received several miscellaneous comments from one commenter who supported sending illegal immigrant lawbreakers back to a country of the immigration judge's choosing immediately, asserted that the United States has too many illegal immigrants (which causes taxes to go up), and that it is time we seal our borders. As discussed above, the Department declines to expand upon the authority provided by Congress in sections 241(b)(1) and (2) of the Act to allow an immigration judge to send an alien back to a country of the judge's choosing. The Department of Justice, DHS, and other agencies of the United States government vigorously enforce American immigration laws against illegal immigration, and these rules are only one aspect of the effort to ensure that the United States is able to effectuate the removal of aliens who are deportable or inadmissible. The Department of Justice believes that the remaining proposals suggested by this commenter fall outside the scope of this rule and will not be addr essed.